24 November 2011

Scarlet vs SABAM: Do Neither Block, Nor Filter!

Image: …E O VENTO LEVOU (Gone With The Wind) by jonycunha on Flickr
...E O VENTO LEVOU (Gone With The Wind)

If you have landed here, I guess you are interested to find out more about today’s ruling of the Court of Justice of the European Union in the case Scarlet Extended vs Société belge des auteurs compositeurs et éditeurs (SABAM).

Some months ago I blogged on the opinion of the Advocate General Cruz Villalón, in which he asked the Court to declare that

the EU law precludes a national court from making an order that an ISP installs a system for filtering all electronic communications. 

I suggest that you read this older post of mine in order to be familiar with the background of the case.


what did the Court decide?

The Court basically backed the Advocate General’s opinion and held that

1. while the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’),  it has no absolute protection;

2. national authorities and courts, when undertaking measures to protect copyright holders, must strike a fair balance between the protection of copyright and (i) the protection of the fundamental rights of individuals who are affected by such measures and (ii) the protection of the freedom to conduct a business enjoyed by ISPs such as Scarlet pursuant to Article 16 of the Charter;

3. the obligation of ISPs (such as Scarlet) to install and maintain a complicated, costly and permanent filtering system in the interests of copyright holders (such as SABAM) without any limitation in time, directed at all future infringements and intended to protect not only existing works, but also future works, would well infringe both, ISPs freedom to conduct a business and the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

Consequently, the Court held that an injunction ordering an ISP to filter its network traffic in the manner of para 3 above would represent a

serious infringement of EU law

and any national court, having issued such an injunction, would disrespect the legal framework of the European Union.

In my previous blogpost I predicted that Advocate General`s opinion, if followed by the Court, would create a bomb blast to sweep away the adversaries of fundamental human rights.

Did I promise you too much? I hope not.

Anyway, although the Court did in fact light a fuse that will eventually cause an explosion, it will not be a hurting one. It will rather provide ISPs such as Scarlet with the necessary shell to protect them in the performance of their most important services to the information society.

What does this mean in practical terms?

Basically and since the ruling heavily relies on Article 15 of the Directive 2000/31/EC, an ISP is protected only to the extent that it does not filter or modify its network`s traffic. Should the ISP – be it by means of an excessive compliance or an anticipatory self-regulation – begin to filter or block traffic, it would then lose the abovementioned privilege.

So, ISPs all over the EU – do simply enjoy the new dawn of the ruling and do neither block, nor filter, because otherwise you might be gone with the wind!

6 May 2011

VPR v John Does: IP Subscribers ≠ Copyright Infringers

Anonymous-Suit-black High Resolution PNG (2404 x 3890)photo © 2010 OperationPaperStorm | more info (via: Wylio)

Who remembers Depeche Mode’s People Are People?
It basically says that people are different: they are different colours and have different needs.
In a more or less similar spirit, a court order issued by the Honourable Harold H. Baker, justice at the United States District Court for Central Illinois, says that people are different from IP Addresses.
Not that we did not know it, but now it is official.

I guess that, during the last couple of months, you have obtained knowledge of the much criticised mass litigation conducted by (alleged) right-holders in Europe and, particularly in the United States.

In fact, one could speak of an

Emerging Business Model

that had some success, but now seems to have been dampened.

Why? What happened?

VPR, a Montreal-based producer of adult entertainment content (claimant) filed a complaint against 1,017 John Doe defendants who had allegedly involved in file-sharing. Claimant was not aware of the identity of the alleged infringers, but was in the possession of their Internet Protocol (IP) addresses. Since Internet Service Providers (ISP) assign IP addresses to their subscribers, claimant moved to obtain so-called Doe subpoenas directed to the ISP with the clear aim to determine the identity of the Does.
ISP would have been under an obligation to reveal their subscribers’ identity, had claimant only been granted the subpoenas.

Yes, you may trust your eyes:

His Honour denied

claimant’s motion in an outright manner.

Justice Baker reasoned upon his order citing a press article which reported how a family was falsely raided by federal agents after a neighbour of that family had misused their WiFi connection to share illegal material. Not surprisingly, the agents had obtained a Doe subpoena prior to the raid.

Having carefully scrutinised the list of IP addresses attached to VPR’s complaint, His Honour found that it suggested, in at least some instances, a disconnect between IP subscribers and copyright infringers and that such disconnect could occur in another family or individual entering into a conflict with the law.
He thus refused to assume responsibility for causing harm to (very likely) innocent Internet users.

I say Justice Baker’s approach

Deserves Acclaim

Because mass-litigation conducted by copyright trolls relies on the speed kills principle: the proceedings must go fast, involve thousands of defendants and be cheap. Claimants seek to identify their victims and serve them with settlement agreements to make them pay amounts that undercut the cost necessary to procure legal defence. The victims must be put under pressure and have no or just very little time to react.
Hence, every obstacle on the way to a settlement agreement may prove decisive for a copyright troll’s business model.
Justice Baker’s dismissal is such an obstacle and it can make the Canadian copyright troll drop its claims.

Therefore, three cheers to His Honour and his responsible finding.
After all, IP subscribers and copyright infringers are not necessarily the same.

Or have I missed something?

16 April 2011

Scarlet vs SABAM: Gone With The Wind?

Interiorsphoto © 2009 jaci Lopes dos Santos | more info (via: Wylio)

In Margaret Mitchell’s novel Gone with the Wind, the novel’s protagonist, Scarlett O’Hara wonders to herself if her home on a plantation called “Tara” symbolising the pre-civil war South is still standing, or if it was “also gone with the wind”.

I must say that I had similar thoughts when I read the opinion of Advocate general Cruz Villalón in the case Scarlet vs SABAM.
I bet you want to know why?

Good, before I share them with you, however, I will present you with the


In 2004 the Société belge des auteurs compositeurs et éditeurs (SABAM) applied for interim relief against the Belgian ISP Scarlet on the ground that Scarlet’s users had shared musical works contained in SABAM’s repertoire without SABAM’s permission, thereby infringing the copyright in the works.
In 2007 the Brussels Tribunal of First Instance ruled that Scarlet was under an obligation both to block the accounts of its users and to implement a mechanism to filter out infringing content. According to this decision, Scarlet was obliged to make it impossible for its customers to send or receive a P2P file that would include works from SABAM, and faced fines of €2,500 a day if it failed to comply within six months.

In 2008 the Tribunal of First Instance in Brussels decided, on an application for “absolute impossibility of compliance” filed by Scarlet against its decision of 2007, that the Tribunal had been badly informed when it decided that appropriate filtering technologies were available on the market. Scarlet had argued that it was technically impossible or unreasonably expensive to block the P2P traffic and that the solution developed by Audible Magic, a filter mechanism, did not work. Additional technical options were considered and implemented but none of them led to a satisfactory solution.
The Tribunal declared itself not competent to deal with the question as to whether filtering can be made compulsory for ISP and referred the case to the Brussels Court of Appeals.

The Court of Appeals sought a ruling from the Court of Justice of the European Union on whether EU law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights, permit a national court to order an ISP to install a system for filtering and blocking electronic communications.

Advocate General’s opinion

Advocate General Cruz Villalón considers that a court order to install a system to

1. filter all data communications passing via Scarlet’s network, in order to detect data which involve a copyright infringement and
2. block communications which actually involve copyright infringement, either at the point at which they are requested or at the point at which they are sent

constitutes a general preventive obligation that would apply in abstracto without determining whether there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.

This obligation, says the Advocate General, would also delegate the legal and economic responsibility for combating illegal downloading of pirated works to the ISP.

In the light of the above, Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. Equally important, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

To say it with Cruz Villalón’s own words: “As far as we can tell, no system of filtering and blocking seems to guarantee, in a manner that is consistent with the requirements of Articles 11 and 52, paragraph 1, of the Charter, that it will block only content specifically identifiable as illicit”.

Consequently, the Advocate General proposes that the Court of Justice should declare that EU law precludes a national court from making an order that an ISP installs such a filtering system.

This is not just a wind, no, it is a real bomb blast!

Nuclear Blast 1945photo © 2005 Thomas Williams | more info (via: Wylio)



As you might know, the Court of the European Union follows Advocate General’s opinion in about 80 percent of its decisions.
This means there is more than just a fair chance that the Court rules against the requested filtering system.

In fact it is not a simple ruling that we need.
We need the Court to sweep the adversaries of fundamental human rights away and make them “gone with the wind”!


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